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COMMONWEALTH PENNSYLVANIA v. GERALD BOGAN (03/10/86)

submitted: March 10, 1986.

COMMONWEALTH OF PENNSYLVANIA
v.
GERALD BOGAN, APPELLANT



Appeal from the Judgment of Sentence entered February 7, 1983 in the Court of Common Pleas of Allegheny County, Criminal Division, No. CC 8201029

COUNSEL

Timothy E. Finnerty, Pittsburgh, for appellant.

Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Commonwealth, appellee.

Wickersham, Watkins and Cercone, JJ.

Author: Cercone

[ 355 Pa. Super. Page 34]

Appellant, Gerald Bogan, was charged by Information filed February 25, 1982 with Armed Robbery and Conspiracy. He was convicted by jury on both counts. On February 7, 1983, appellant was sentenced to a term of imprisonment of ten (10) to twenty (20) years on the robbery charge and five (5) to ten (10) years for the criminal conspiracy charge, to be served consecutively. Following the trial court's denial of appellant's post trial motions, filed nuno pro tunc by leave of this court, this timely appeal was filed.

Appellant raises four issues in this appeal which will be addressed seriatim. He first alleges that his right to a speedy trial, pursuant to Pennsylvania Rule of Criminal Procedure 1100, was violated when, on November 13, 1982, the trial court granted the Commonwealth's motion to extend the time for trial.

On June 25, 1982, appellant waived his right to speedy trial and agreed to a final trial date of November 11, 1982. When the Commonwealth and appellant appeared for trial on November 12, 1982 (November 11 being a court holiday), there were no judges available to hear the case. The Commonwealth filed a petition for extension of time on November 12, 1982 and another on November 17, 1982. On November 12, the court granted the Commonwealth's motion for extension of time and ordered the case be tried on the first available trial date, but not later than January 18, 1988, Trial commenced on December 20, 1982 and he was found guilty for the crime of robbery and conspiracy.

Appellant claims that the extension of time was improperly granted because the Commonwealth (1) failed to show due diligence in bringing the case to trial, (2) failed to sufficiently explain the delay attributed to the judicial backlog in the court system; and, (3) the Acting Administrative Judge failed to schedule appellant's trial for the earliest

[ 355 Pa. Super. Page 35]

    date after November 12, 1982, consistent with the business of the court, as required by Rule 1100(c)(4).*fn1

The lower court in its opinion attempts to justify the extension primarily on the ground that the case could not have been brought to trial within the 180 day period because no judges were available to hear the case and, therefore, judicial delay was unavoidable.

Assuming, arguendo, that the Commonwealth in its petition to extend did show due diligence in being ready to bring appellant to trial within the time required by Rule 1100, and that judicial delay was properly shown, we find nevertheless, that the Commonwealth failed to show on-the-record that appellant's trial on December 20, 1982 was the first date available consistent with the request and the court's business. However, due to what appears to be inadvertence or ...


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